Adoption of West

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19-P-388 Appeals Court

ADOPTION OF WEST (and two companion cases1).

No. 19-P-388.

Hampden. January 13, 2020. - March 27, 2020.

Present: Green, C.J., Massing, & Lemire, JJ.

Department of Children & Families. Adoption, Dispensing with
parent's consent, Visitation rights. Minor, Adoption,
Visitation rights. Parent and Child, Adoption, Dispensing
with parent's consent to adoption. Practice, Civil,
Adoption.

Petitions filed in the Hampden County Division of the
Juvenile Court Department on August 26, 2013.

The cases were heard by Rebekah J. Crampton Kamukala, J.

John P. Dennis for the mother.
Brian Pariser for Department of Children and Families.
Kathleen Putney Towers for Brian & another.
Sherrie Krasner for West.

MASSING, J. In this appeal from decrees terminating the

mother's parental rights with respect to the three children, we

1 Adoption of Brian and Adoption of Anna. The children's
names are pseudonyms.
2

address when and how a parent may assert a claim that the

Department of Children and Families (department) failed to make

reasonable efforts towards family reunification. The mother's

primary contention on appeal is that the department did not make

sufficient services available to her in Spanish. Concluding

that the mother never asserted this specific claim during the

course of the proceedings, and that the judge did not abuse her

discretion in determining that the department's efforts were

reasonable and that termination of the mother's parental rights

was in the best interests of the three children, we affirm.

Background. We summarize the relevant facts as found by

the Juvenile Court judge after seven days of trial, supplemented

by uncontested evidence from the record. The mother was born in

Puerto Rico, is a native Spanish speaker, and requires an

interpreter to understand English. She has three children:

West, Brian, and Anna.2 At the time of trial, West was eleven

years old, Brian was seven years old, and Anna was four years

old. All three children have special needs, which at the time

of trial were being addressed by their foster families with the

assistance of counsellors and specialists.

The mother met West's father and gave birth to West when
2

the mother and West's father were teenagers in Puerto Rico. The
mother met the man who would become Brian and Anna's father in
Puerto Rico and relocated with him to Massachusetts when West
was an infant. The father of West and the father of Brian and
Anna are not parties to this appeal.
3

The department first became involved with the mother in

2009 after the mother walked into the local police station and

alleged domestic violence by the father of Brian and Anna. The

department encountered the mother again in 2011 after receiving

a G. L. c. 119, § 51A, report (51A report) alleging neglect of

the children. The department closed both cases after

investigating and offering services to the mother.

On August 25, 2013, a 51A report was filed alleging neglect

of the children at the mother's apartment. When police and

social workers arrived they found the mother's friend Caroline

Smith (a pseudonym), nine month old Anna, and signs of violence,

including dried blood. The mother, West, and Brian were absent;

Smith did not know where they were. Earlier that day, the

mother had accused the children's babysitter of stealing drugs

and money. The mother and the babysitter argued, then the

mother hit the babysitter in the face with a pistol. The

babysitter left the apartment and was transported by ambulance

to Baystate Medical Center (Baystate), where she was treated for

an orbital fracture of her eye. The mother was charged with

assault and battery by means of a dangerous weapon and released

on bail. She was later convicted after a jury trial and

received an eighteen-month suspended sentence.

The department took custody of Anna and was informed that

West and Brian might be in New York with their maternal
4

grandfather. The following day, the department filed a care and

protection petition on behalf of all three children. The next

day, the maternal grandmother delivered Brian to the emergency

room at Baystate. Brian had a broken leg and many bruises and

required surgery. Upon release from the hospital, he was placed

in a foster home.

The mother appeared for the seventy-two hour temporary

custody hearing. She stated that she was unsure of West's

whereabouts. Twenty minutes after a Juvenile Court judge told

the mother that she would be held in custody until West

appeared, a family friend delivered him to court. The mother

waived the temporary custody hearing, and all three children

remained in the custody of the department.

After the children were removed, the mother engaged in

services and complied with the department's plan to work towards

family reunification. In February 2015, the department

determined that while the mother had completed only some of her

service plan tasks, she was moving in a positive direction. In

May 2015, the department recognized the mother's compliance with

the service plan, including her attending individual therapy

sessions, and developed a reunification plan for the mother and

the children.

In the summer of 2015, the department reunited the mother

with all three children. Within a few months, however, the
5

mother stopped engaging in services and began neglecting the

children. In September 2015, the department removed all three

children and placed them in foster homes again after a 51A

report was filed alleging that Brian had arrived at school with

a burn mark on his back, reporting that West had burned the

letter "A" on him with the mother's cigarette lighter while she

was outside smoking. The 51A report also stated that the mother

had disciplined West with a belt, that she missed school

meetings for the children, and that she left the children

unsupervised.

The department's goal remained reunification of the

children with the mother. The department designed service plans

to help the mother reach this goal, but the mother did not fully

engage with the services offered. She attended visits with the

children twice a month but was often late. One of the service

plan tasks required the mother to bring snacks and prepare age-

appropriate activities for her visits with the children. When

the visits were held in the social worker's office, the mother

did not engage with the children but instead let them play with

her cell phone or tablet computer. The visits were moved to the

Children's Museum, but the mother still had difficulty

interacting with the children. Although she completed parenting

classes, her primary means of discipline appeared to be corporal

punishment.
6

The department made substantial efforts to provide the

mother with mental health care; we discuss these efforts in

detail below. In March 2016, the department changed its goal

from reunification to adoption as the mother did not appear to

be addressing the issues necessary for reunification. After a

trial that began in February 2017 and concluded in late July,

the judge found the mother was currently unfit, was likely to

continue to be unfit into the indefinite future to a near

certitude, and that it was in the best interests of the children

to terminate the parental rights of the mother. The judge

ordered that the children should have at least one visit per

year with the mother, so long as the department, or each child's

adoptive parent or guardian, agreed it was in the best interests

of the child.

Discussion. The mother's central claim on appeal is that

the department failed to make reasonable efforts to reunify her

with her children because it failed to provide her with Spanish-

speaking service providers. As discussed below, the mother did

not raise this claim at any point in the proceedings when the

department could meaningfully address it or the judge could

properly evaluate it. In addition, the mother asserts that we

should reverse the judge's decision to terminate her parental

rights because it was based on the clearly erroneous finding

that she abandoned the children, and that the judge abused her
7

discretion by declining to order postadoption visits with Brian

and Anna.

1. Reasonable efforts. The department is "required to

make reasonable efforts to strengthen and encourage the

integrity of the family before proceeding with an action

designed to sever family ties." Adoption of Lenore, 55 Mass.

App. Ct. 275, 278 (2002). Indeed, the department in its

regulations "recognizes the special concerns of linguistic and

cultural minorities in the Commonwealth," and requires both that

its social workers be fluent in a language their clients

understand and "that both the services it provides directly and

those it provides through providers or contracts are culturally

sensitive to the various minority groups in the client

population." 110 Code Mass. Regs. § 1.06 (2008).

Judges are required to assess the department's reasonable

efforts at various junctures during a case when the department

takes or retains custody of children: at emergency custody

hearings, at seventy-two hour temporary custody hearings,

annually thereafter, and before terminating parental rights.

See Care & Protection of Walt, 478 Mass. 212, 219-224 (2017);

Adoption of Ilona, 459 Mass. 53, 60 (2011); G. L. c. 119, § 29C.

A judge's determination that the department made reasonable

efforts will not be reversed unless clearly erroneous. Adoption

of Ilona, supra at 61-62. "However, even where the department
8

has failed to meet this obligation, a trial judge must still

rule in the child's best interest." Id. at 61. See G. L.

c. 119, § 29C ("A determination by the court that reasonable

efforts were not made shall not preclude the court from making

any appropriate order conducive to the child's best interest").

Here, before making the termination decision, the judge

specifically found that the department made reasonable efforts

to reunite the children with the mother. The judge did not

address the department's alleged failure to provide services in

Spanish because the mother never raised the issue.

"It is well-established that a parent must raise a claim of

inadequate services in a timely manner." Adoption of Daisy, 77

Mass. App. Ct. 768, 781 (2010), S.C., 460 Mass. 72 (2011). The

parent should assert the claim "either when the parenting plan

is adopted, when [s]he receives those services, or shortly

thereafter." Adoption of Gregory, 434 Mass. 117, 124 (2001).

Raising the issue at an early stage in the proceedings allows

the department to remedy the inadequate services, which in turn

fosters a greater chance of family reunification. A parent

cannot raise a claim of inadequate services for the first time

on appeal, as the department would not have had the opportunity

to address it.

A parent has many avenues available to raise a claim of

inadequate services. A parent may pursue her claim by
9

requesting an administrative fair hearing or rejecting the

service plan and filing a grievance. See Adoption of Gregory,

434 Mass. at 124, citing 110 Code Mass. Regs. §§ 6.07, 10.05,

10.06, 10.37, 10.39 (1998).3 A claim of inadequate services can

be raised by a so-called "abuse of discretion" motion. See

Adoption of Daisy, 77 Mass. App. Ct. at 781 (mother filed motion

claiming that department had abused its discretion by failing to

secure specific services). Counsel for a parent may raise

issues of inadequate services prior to trial, such as during a

pretrial conference. See Adoption of Gregory, supra at 124-125.

These methods put the department on notice that its efforts may

be inadequate, allow the department an opportunity to remedy any

problems, and permit the department to defend its efforts at

trial.

Here, the mother contends that she raised her claim of

inadequate services in a timely manner because she discussed it

with her psychological evaluator and raised it in her proposed

findings of fact and conclusions of law submitted after the

trial, and that it was a "theme that ran through the life of the

case." Adoption of Chad, 94 Mass. App. Ct. 828, 839 n.20

3 In appropriate circumstances, a parent may bring an
independent action alleging inadequate services. See Adoption
of Gregory, 434 Mass. at 124 (noting that father could have
filed action for discrimination under Americans with
Disabilities Act).
10

(2019). We are not persuaded that the mother put the department

or the judge on notice of her current claim of inadequate

services.

The mother bases her current reasonable efforts claim on

the trial testimony of psychologist Brian Rachmaciej, Ed.D.

Throughout its contact with the mother, the department

recognized that she had mental health issues and the department

periodically assigned Rachmaciej to evaluate her psychological

functioning. The mother and Rachmaciej had a good rapport

because he spoke Spanish and was knowledgeable about her

cultural background. She told Rachmaciej that she had

difficulties finding Spanish-speaking therapists. Rachmaciej

testified that in general families in western Massachusetts

"with very specific linguistic and cultural differences have a

much more difficult time obtaining services in the appropriate

language or by a clinician with training in their own unique

cultural frameworks," and that there is "an extreme lack of

psychiatrists," even for "populations that don't require

linguistic, specialized or culturally specialized" services. In

2016, Rachmaciej recommended a partial hospitalization program,

weekly therapy, and referral to a psychiatrist for medication.

The trial judge found all of the above to be true.

But while the mother confided to Rachmaciej that she was

having difficulty finding Spanish-speaking therapists in her
11

vicinity, there is no evidence in the record that Rachmaciej or

the mother conveyed this information to the department.

Rachmaciej's role was to assess the mother's psychological

functioning and make recommendations for treatment; he did not

have a supervisory role in the implementation of her service

plan. He testified that on one occasion he took a more active

role, advocating to the mother's social worker that she needed

the partial hospitalization program, a recommendation with which

the mother's regular therapist initially disagreed. Contrary to

the mother's current claim, however, Rachmaciej believed that

this program had "culturally sensitive linguistically

appropriate providers on site." Even though Rachmaciej's

testimony touched on the availability of mental health services

for Spanish speakers, the mother did not raise the issue in

argument at trial.

The mother contends that she raised her claim in her

proposed findings of fact and conclusions of law, filed

approximately four months after the trial ended. This was too

late to raise the issue for the first time. As the trial had

already ended, the department had no opportunity to modify its

efforts to promote a greater chance of family reunification, or

to put on evidence that it had actually made reasonable efforts

to address the perceived issue, and the judge did not have an

opportunity to evaluate the claim. The mother relies on a
12

footnote in Adoption of Uday, 91 Mass. App. Ct. 51, 53 n.4

(2017), for the proposition that a reasonable efforts claim can

be asserted for the first time in posttrial proposed findings

and rulings. Her reliance is misplaced. That footnote quoted a

trial judge who had raised the issue of reasonable efforts sua

sponte, noting that the father did not address the issue in his

proposed findings and rulings and stating that "the issue has

not [been] actively litigated or framed from review." Id. To

be sure, addressing an issue in proposed findings and rulings is

usually a good indication that the issue was raised at trial --

but it is not an acceptable avenue for raising an issue that was

never addressed at trial.

In any case, the mother did not raise the issue in her

proposed findings and rulings. She did make references to

Rachmaciej's testimony, which the trial judge incorporated in

her findings. But as to reasonable efforts, the mother's

proposed findings focused on the summer of 2015, when the

children were returned to her, asserting in general terms that

the social worker's efforts on her behalf were not as good as

they had been before, that the service plan tasks "were very

difficult to fulfill," and that the social worker did not make

her a therapy referral until November 2016. The judge rejected

this suggestion, finding instead that the mother "worked hard

with services in 2015" until her children were returned to her,
13

but "within a few months of their return, [the m]other stopped

meeting with providers for herself and her children."

The record also belies the mother's claim. The department

provided the mother with Spanish-language services throughout

the case, including providing her with a Spanish-speaking social

worker, writing service plans in Spanish and English, having her

evaluated by a Spanish-speaking psychologist, and referring the

mother to Spanish-speaking therapists. After the children were

removed for the second time, the mother's Spanish-speaking

social worker made a series of referrals, four in all, to

Spanish-speaking therapists. The social worker first referred

the mother to West Central Family and Counseling (West Central)

in November or December 2015. After the mother failed to

respond to requests to set up appointments, West Central closed

her case. In late January or early February 2016, the social

worker referred her to River Valley Counseling Center (River

Valley), but she did not appear for the initial intake

appointment. Sometime during the spring in 2016, the social

worker referred her to River Valley again, and the mother

inconsistently attended therapy there for three or four months.

When her therapist at River Valley left to work at the Holyoke

Health Center, the mother declined to follow her therapist there

because she did not like the facility. In December 2016, the

mother was referred to a therapist who could meet with the
14

mother in her home; she was seeing this therapist at the time of

trial. The department more than reasonably accommodated the

mother's needs; "heroic or extraordinary measures, however

desirable they may at least abstractly be, are not required."

Adoption of Lenore, 55 Mass. App. Ct. at 278.

Finally, in a citation to supplemental authority submitted

after oral argument, the mother referred us to a footnote in

another case, in which we rejected the department's assertion

that a reasonable efforts claim had been waived because it was a

"theme that ran through the life of the case." Adoption of

Chad, 94 Mass. App. Ct. at 839 n.20. In that case, the record

raised serious concerns about the mother's mental capacity, but

the termination trial did not explore whether available outside

support could have assisted her in caring for the special needs

of her children. Id. at 839, 842. In the present case, the

failure to provide services in Spanish was neither a theme of

the case nor supported by the record. The mother has failed to

show that the judge's finding of reasonable efforts was clearly

erroneous.

2. Finding of unfitness. "To terminate parental rights to

a child, the judge must find, by clear and convincing evidence,

that the parent is unfit and that the child's 'best interests

will be served by terminating the legal relation between parent

and child.'" Adoption of Luc, 484 Mass. 139, 144 (2020),
15

quoting Adoption of Ilona, 459 Mass. at 59. "We give

substantial deference to the judge's findings of fact and

decision, and will reverse only 'where the findings of fact are

clearly erroneous or where there is a clear error of law or

abuse of discretion.'" Adoption of Luc, supra, quoting Adoption

of Ilona, supra.

The mother argues that the judge erroneously determined she

was unfit because she abandoned the children, which resulted in

the termination of her parental rights. Under G. L. c. 210,

§ 3 (c), judges must consider fourteen nonexclusive statutory

factors, "to the extent they are relevant, when determining

whether the child's best interests require dispensing with the

parent's consent to adoption." Adoption of Zoltan, 71 Mass.

App. Ct. 185, 195 n.14 (2008). The judge found that the mother

"often left her children . . . with unqualified babysitters, or

alone for a short time when the oldest child . . . was . . .

eight years old." The judge listed this finding under the first

statutory factor, "the child has been abandoned." G. L. c. 210,

§ 3 (c) (i). Although the finding was factually accurate, as a

matter of law it does not amount to having "abandoned" the

children, which is specifically defined by statute as "being

left without any provision for support and without any person

responsible to maintain care, custody and control because the

whereabouts of the person responsible therefor is unknown and
16

reasonable efforts to locate the person have been unsuccessful."

G. L. c. 210, § 3 (c). See Adoption of Posy, 94 Mass. App. Ct.

748, 753 (2019). This factual finding would have been more

aptly categorized as evidence of "neglect," the second statutory

factor. See G. L. c. 210, § 3 (c) (ii). Indeed, under the

second factor, the judge found, among other things, that the

mother "was neglectful of the children leaving them alone at

times." The judge's error in classifying the evidence of

neglect as evidence of abandonment did not undermine her

ultimate conclusion that the mother was an unfit parent and

likely to remain so.

3. Postadoption contact. The judge ordered that the

children "should have at least one visit per year with their

[m]other, . . . as long as it is in the best interests of each

child as determined by the [d]epartment . . . while in the

custody of the [d]epartment, and to be determined by each

child's adoptive parent or guardian when in their custody." The

mother argues that this order, which effectively leaves

visitation in the discretion of the department and the adoptive

parents, contains "nothing but boilerplate language," is

contrary to the children's wishes, and is not in their best

interests.

The decision to order posttermination or postadoption

visits is left to the judge's discretion. See Adoption of John,
17

53 Mass. App. Ct. 431, 439 (2001). "An order for postadoption

visitation is not warranted in the absence of a finding that a

significant bond exists between the child and a biological

parent and 'that continued contact is currently in the best

interests of the child.'" Id., quoting Adoption of Vito, 431

Mass. 550, 563-564 (2000).

The children argue, through counsel, that the order is

appropriate and supported by the evidence and the judge's

findings, specifically, that West expressed a desire to limit

visits to once per year, that Brian feared the mother would hit

him and Anna, that the mother came to visits unprepared, that

she did not interact appropriately with the children, and that

the preadoptive parents were alert to the children's needs. We

agree. "When a trial judge decides not to order visitation,

. . . [s]he is not required to make extensive findings if [s]he

has already made specific and detailed findings regarding the

child's best interests and the determination of parental

unfitness." Adoption of John, 53 Mass. App. Ct. at 439.

Contrast Adoption of Oren, 96 Mass. App. Ct. 842, 849 (2020)

(remanding for findings where "despite evidence that visitation

would be in the child's best interests," judge gave no

explanation for decision not to order postadoption visitation).

Decrees affirmed.